Litigation: The SEC continues to play the enforcer

Last year, the SEC brought more enforcement actions than ever before. This year, the agency picked up right where it left off. The SEC tallied another one this week, filing an enforcement action against Wells Fargo that, even by SEC standards, seems particularly aggressive, in part because its premise is so basic: the alleged failure by Wells Fargo to fully respond to six document subpoenas issued by the SEC.

The SEC now seeks an order from the Northern District of California compelling the bank to turn over the information. Although it is unclear how, precisely, an issue over the production of documents reached this level, one thing is abundantly clear: when faced with document subpoenas from regulators, ongoing communication and transparency is essential.

This all began with the SEC’s investigation of Wells Fargo’s role in the creation of certain mortgage backed securities (MBS), the type of investigation by regulators that, today, is far from unusual. Specifically, the SEC sought evidence that Wells Fargo failed to disclose underlying credit weaknesses in a number of mortgage pools. Concerned that Wells Fargo misrepresented or omitted facts relating to its compliance with underwriting guidelines, the SEC asked the bank for more information about those guidelines and its due diligence practices through six subpoenas issued since September 2011.

In the face of these multiple subpoenas, Wells Fargo did what any respondent would do: It reached out to the SEC, started producing documents, identified certain documents as privileged and set forth for the SEC concrete production dates for additional documents to be produced. That is, until February 2012, when the SEC issued a Wells notice, informing Wells Fargo that the SEC staff was considering civil claims against the bank tied to its underwriting and packaging of certain MBS securities. At that point, according to the SEC’s complaint, Wells Fargo failed to meet its self-imposed production dates and ignored the outstanding subpoenas.

Wells Fargo allegedly took the position that, in the wake of the Wells notice, the investigation was effectively over—the SEC had raised the stakes by issuing the Wells notice, the SEC was no longer in “investigation” mode and the goal for Wells Fargo, at this point, was to try to convince the SEC staff not to recommend that civil action be taken. It turns out that Wells Fargo was wrong—according to the SEC, the Wells notice never ends an investigation—but it is difficult to fault Wells Fargo for taking the position that the investigation had reached a different phase, or for its apparent concern about producing documents to a regulator that was actively preparing to file a civil action against it.

So where did Wells Fargo go wrong? We don’t know all the facts or the extent and content of the communications between Wells Fargo and the SEC, but regardless, this case offers a reminder about the importance of communicating with regulators, especially over issues as basic (and important) as responding to outstanding subpoenas. It is unclear whether this enforcement action was a surprise to Wells Fargo. If it was, it suggests the lines of communication had effectively shut down, and the fault could lie equally with the SEC. But the lesson is an obvious one: If there is confusion about the status of an outstanding subpoena, ask about it. If there are representations about the timing of productions, meet those self-imposed deadlines or explain why they won’t be met. If you think there may be a miscommunication, try to resolve it. As Wells Fargo can attest, even the appearance of inattention—right or wrong—may get you into trouble.